Citation Nr: 0003733
Decision Date: 02/14/00 Archive Date: 02/15/00
DOCKET NO. 95-14 042 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York
THE ISSUE
Entitlement to service connection for peripheral vascular
disease of the left leg.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James L. March, Counsel
INTRODUCTION
The veteran served on active duty from August 1944 to January
1946.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 1994 decision of the RO.
In addition to the issue listed hereinabove, the veteran also
appealed the denial of an increased rating for residuals of a
gunshot wound to the left leg. In a December 1998 rating
decision, however, the RO determined that there had been
clear and unmistakable error in a March 1948 rating decision
which had reduced the rating for the veteran's service-
connected gunshot wound residuals from 30 percent to 10
percent. The RO assigned a 30 percent evaluation, the
highest schedular rating for the disability, effective on May
29, 1948. Thus, this issue is no longer in appellate status.
FINDING OF FACT
The veteran's claim of service connection for peripheral
vascular disease of the left leg is plausible.
CONCLUSION OF LAW
The veteran has submitted evidence of a well-grounded claim
of service connection for peripheral vascular disease of the
left leg. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp.
1999); 38 C.F.R. §§ 3.303, 3.310 (1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
Initially, one who submits a claim for benefits under a law
administered by VA has the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. 38 U.S.C.A.
§ 5107(a). Only when that initial burden has been met does
the duty of the Secretary to assist such a claimant in
developing the facts pertinent to the claim attach. Id.
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) has further defined a well-grounded claim as a
plausible claim, one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990).
It has also held that where a determinative issue involves a
medical diagnosis or medical causation, competent medical
evidence to the effect that the claim is plausible is
required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
In order for the claim of service connection to be well
grounded, there must be competent evidence of: (1) a current
disability; (2) an in-service injury or disease; and (3) a
nexus between the current disability and the in-service
injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506
(1995).
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303. The regulations also provide that
service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection may be granted for disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a). When aggravation
of a veteran's nonservice-connected condition is proximately
due to or the result of a service-connected condition, the
veteran shall be compensated for the degree of disability
over and above the degree of disability existing prior to
aggravation. Allen v. Brown, 7 Vet. App. 439 (1995).
The veteran alleges that he has peripheral vascular disease
of the left leg which he attributes to his gunshot wound. In
a December 1998 letter, the veteran's private physician, Joel
A. Daniel, M.D., stated that the veteran had severe left leg
arterial insufficiency. He noted that there was a marked
difference between the left and right leg vascular disease
that could only be due to the prior trauma of the left leg.
The right leg, he stated, had only minimal vascular changes.
He concluded that the veteran had "left leg vascular
insufficiency due solely to the wound he suffered to his left
leg."
Inasmuch as the private medical evidence shows that the
veteran currently has peripheral vascular disability which is
attributed to the veteran's service-connected disability, the
Board finds that the claim is well grounded.
ORDER
As the claim of service connection for peripheral vascular
disease of the left leg is well grounded, the appeal to this
extent is allowed, subject to further action as discussed
hereinbelow.
REMAND
As the veteran has submitted a well-grounded claim, VA's duty
to assist requires that he be afforded an examination to
determine the etiology of his peripheral vascular disease of
the left leg. See Green v. Derwinski, 1 Vet. App. 121, 124
(1991). Any pertinent treatment records also should be
obtained for the purpose of review in connection with the
examination.
In light of the foregoing, the Board is REMANDING this case
for the following:
1. The RO should ask the veteran to
identify the names, addresses, and
approximate dates of treatment for all VA
and non-VA health care providers who have
treated him for peripheral vascular
disease of the left leg since service.
After obtaining any necessary
authorization from the veteran, the RO
should attempt to obtain copies of all
pertinent treatment records identified by
the veteran in response to this request,
which have not been previously secured.
2. Then, the RO should arrange for a VA
examination to determine the nature and
etiology of the veteran's vascular
disease. The claims folder must be
available to, and reviewed by, the
examiner prior to the requested study.
The examiner should provide an opinion as
to the likelihood that the veteran has
current peripheral vascular disease of
the left leg that was caused or worsened
by the service-connected gun shot wound
he suffered in service. The examiner
should specifically address the December
1998 letter of Dr. Daniel. A complete
rationale must be provided for any
opinion expressed. The examiner's report
should be associated with the claims
folder.
3. After undertaking any additional
necessary development, the RO should
review the issues on appeal. Due
consideration should be given to all
pertinent laws and regulations. If the
benefit sought on appeal is not granted,
the veteran and his representative should
be issued an appropriate Supplemental
Statement of the Case and given a
reasonable opportunity to reply.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is otherwise notified, but he may
furnish additional evidence and argument while the case is in
remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141
(1992); Booth v. Brown, 8 Vet. App. 109 (1995). In taking
this action, the Board implies no conclusion as to any
ultimate outcome warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals